College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 1983 Law Reform – Suggested Revisions to Virginia's Wills Statutes: Part 2 John E. Donaldson William & Mary Law School Repository Citation Donaldson, John E., "Law Reform – Suggested Revisions to Virginia's Wills Statutes: Part 2" (1983). Popular Media. 118. https://scholarship.law.wm.edu/popular_media/118 Copyright c 1983 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media JOHN E. DONALDSON Law Reform-Suggested Revisions to Virginia's Wills Statutes Part Two PART One of this article, which was published in ever reason, to execute a new will pnor to death. the spring, 198:1 issue of The Virginia Bar Journal, Under current law, if there are no children, the surviv­ noted that the Executive Committee of The Virginia ing spouse may renounce the will and pursuant to Bar Association has requested the Committee on § 64.1-16 claim one-half of the net personalty, and Wills, Trusts and Estates to undertake a study of Vir­ pursuant to ~ 64.1-19, claim one-third ofthe realty as ginia law relating to succession to property and dower. Brother will get the residue. Suppose, however, administration of estates. The Committee, in its work that there is a child born of the marriage. The results to date, has examined the adequacy of Virginia law in differ. Where the testator is survived by both his anum ber of areas and has carefully considered statu­ spouse and child, the spouse's share upon repudia­ tory approaches employed in other states, including tion drops from one-half to one-third of the net per­ those which have adopted the Uniform Probate Code. sonalty and the spouse remains entitled to one-third The Committee's efforts thus far have contributed to of the realty as dower. Brother again gets the residue, the enactment of a number of statutory changes over which is larger than it would have been had there the last several years. been no afterborn child. The child gets nothing, not­ The first installment of this article discussed sev­ withstanding that he is seemingly a "pretermitted eral proposed revisions to Virginia's wills statutes heir." Under § 64.1-70 the child's share as a "preter­ which are under consideration by the Committee on mitted heir" is exactly zero because of the effect of Wills, Trusts and Estates. The remaining proposals 1982 amendments to S 04.1-\ and ~ 61.1-11. Section currently under active consideration are presented in 64.1·70 purports to give the "pretermitted heir" the this segment, which, like the first, is intended to share that he would have taken had the decedent died inform the har of proposed changes and to invite intestate. However, by reason of the 19f12 amend­ comments and suggestions. The Committee hopes to ments, if the decedent had died intestate, his surviv­ report its recommendations to the Executive Commit­ ing spouse, being a parent of all of his issue, would tee prior to the 1984 session of the General Assembly. have succeeded to the entire estate. Suppose further, however, that after the marriage and birth of the child, the testator's spouse dies or divorce occurs, and D. Effect of Marriage of Testator testator dies survived by the child. Here, notwith­ after Execution of Will standing the will provision leaving everything to Because of recent changes in the intestate succes­ brother, hrother gets nothing and child gets the entire sion statutes, ~ 64.1-1 and ~ 64.1-11, additional statu­ estate by force of§ 64.1·70, the entire estate heing the tory changes are needed to better implement the pre­ child's intestate portion in such circumstance. sumed intent of a testator who executes a will and The divergent results that flow from current stat­ subsequently marries. Virginia law, set forth in S 04.1- utes cannot be defended on policy grounds. Such 58, provides that neither the subsequent marriage of a results are unintended consequences of the 1982 testator nor birth of a child to a testator, or hoth, shall amendments to ~ 64.1-1 and § 64.1-11. Sounder results operate to revoke a will previously executed by the would obtain if Virginia fol lowed a rule which treated testator. Although the marriage of a testator does not the "pretermitted spouse" as being entitled to an revoke his will, the renunciation statutes provide intestate portion. Where there are no children or relief to a surviving spouse aggrieved by the provi­ where the surviving spouse is the parent of all of the sions of the will. testator's children, the intestate portion of the surviv­ The inadequacy of Virginia law may be illustrated ing spouse would be the entire estate. Where the sur­ by the following examples: Suppose that a hachelor viving spouse is not the parent of all the decedent's executes a will leaving his entire estate to his brother, children, the intestate portion would be one-third of and that he subsequently marries, and fails, for what- the net personalty plus one-third of the realty as 10 dower. The Uniform Probate Code at ~ 2-:101 provides an intestate portion to the surviving spouse who mar­ ried the testator after the execution of his will. Legislative proposal.') adds new section 64.1-69. 1. It is set forth in the Appendix and borrows heavily from ~I the U.P.C. I E. Effect of Divorce on a Will; Other Changes of Circumstances Where a testator becomes divorced a vinculo matri­ monii aft!:'r th!:' execution of a will, all provisions in the will in favor of the divorced spouse are thereby revoked, but not the will itself, by force of § 64.1-59. This statute does not address the possibility that the testator may subsequently remarry the divorced spouse. A number of other states, including those which have adopted U.P.C. S 2-50R, anticipate this event and provide that upon remarriage to the divorced spouse the testator's will, if otherwise in effect, is automatically revived. Leg-islativ!:' proposal 6, set forth in the Appendix, amends § 64.1.')9. In addition to following the approach of the u.P.c. set forth above, the draft legis­ lation shifts from ~ 6·1.1-5R to § 54.I-fi9 the rule that John E. Donaldson is Professor of Law at the the subsequ!:'nt marriage of a testator or birth of a Marshall-Wythe School of Law of the College of child to him does not operate to revoke a will. This William and Mary. Professor Donaldson re­ rule is better set forth in a "change of status" type of ceived his B.A. degree from the University of statute than in a "revocation generally" type of stat­ Richmond, his J.D. degree from William and Mary, and his LL.M. degree from Georgetown ute. Also, the revised statute codifies the rule in Jones University. He is a member, College of Probate v. Bro/I'll, 21~) Va. 599, 24R S.E.2d 812 (1978) that, for Counsel; was Chairman of the Virginia Bar purpos!:'s of construction, a divorced spouse is treated Association Committee on Eminent Domain, as having pr!:'d!:'C'!:'ased the testator. 1977-RO; and was Chairman, Section on Taxa­ tion, of the Virginia Bar in 19RI-R2. F. Specific Bequests and Devises of Encumbered Property Virginia follows a common law rule that all debts usually express a preference that the legatee or de­ for which the testator is personally liable, including a visee take the property with the burden of the encum­ debt secured by property that is the subject of a spe­ brance. They generally do not wish their executors to cific devise or bequest, are to be paid from personalty be under a duty to payoff encumbrances during the in the resid ue. Sec Owen v. Lee, lRf> Va. 160, :37 S.E.2d period of administration. 84R (1946). The legatee or devisee th us possesses a Although the U.P.C. does not make it, an important right to exoneration, that is, the right to require the distinction can be drawn between encumbered land executor to payoff the encumbrance. Under U.P.C. § and tangible personalty, on the one hand, and 2-609 the common law rule is reversed and the encumbered intangibles such as stocks and bonds on encumbered property passes to the legatee or devisee the other. Debts secured by land and tangible person­ subject to the encumbrance. alty are usually incurred in connection with the The U.P.C. approach, with modifications, is prefer­ acquisition of, or an improvement to, the property and able. The best rule to follow is one that implements are generally payable in installments over a period of the intention of the hypothetical "typical" testator. years. Hence, in the mind (lfthe "typical" testator, the Experience reveals that testators, when interviewed debt secured by real estate or tangible property is by attorneys preparing their wills and questioned closely associated with the property. He is more likely regarding their wishes as to encumbered property to regard a specific bequest or devise of such property that is the subject of sp!:'cific devises and bequest.", as embracing only his "equity" in the property. How- 11 ever, where a debt is secured by stocks or bonds it is power. The U . P.c. at S ~-o 1() is typical of the majority less likely that the deht was incurred in connection position in requiring a will to make specific reference with the acquisition of the particular securities.